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Two recent Supreme Court of Canada decisions demonstrate that the corporate attribution doctrine is not a one-size-fits-all approach.

Can a creditor obtain a winding up order against a debtor company if the underlying dispute over the debt is subject to an arbitration agreement between the parties?

Court approval of a sale process in receivership or Bankruptcy and Insolvency Act (“BIA”) proposal proceedings is generally a procedural order and objectors do not have an appeal as of right; they must seek leave and meet a high test in order obtain it. However, in Peakhill Capital Inc. v.

Where a winding up petition is based on a debt arising from a contract with a non-Hong Kong exclusive jurisdiction clause, the court will tend to dismiss or stay the winding up petition in favour of the parties’ agreed forum unless there are strong countervailing factors.

In the current economic climate, more and more companies are getting into financial difficulties, informal workouts by debtor companies, with support from certain creditors, seem to be increasingly common.

When a company is in the so-called “twilight zone” approaching insolvency, it is well-established that the directors’ fiduciary duties require them to take into account interest of creditors (the so-called “creditor duty”).

In Simplicity & Vogue Retailing (HK) Co., Limited [2023] HKCFI 1443, the Hong Kong Companies Court (the “Court“) made a winding up order against the Company on the basis that it failed to pay security in time. In considering the Company’s opposition grounds, the Court commented that it retains discretion to wind up a company in cases involving an arbitration clause.

引言

企业国有资产无偿划转,是指企业国有资产在政府机构、事业单位及特定国有企业之间的无偿转移,其作为一种特殊的产权转移方式,具有程序简单、高效便捷、无偿等优势,是国有企业进行资产重组调整的重要方式之一。我国目前已经逐步建立起相对完善的无偿划转制度体系,但无偿划转实务中仍有不少问题尚待明确。厘清国有资产无偿划转过程中的疑难问题,对于正确适用无偿划转制度及促进国有资产保值增值皆有重要意义。

一、企业国有资产无偿划转的制度体系及适用

(一)企业国有资产无偿划转的制度体系概述

自2003年国务院国有资产监督管理委员会(以下简称“国务院国资委”)成立后,我国的国有资产无偿划转制度逐步完善,并形成了现有涵盖有限责任公司、非上市股份有限公司、上市公司的无偿划转制度体系,所涉及的主要规则如下: